Justice Being Done

The Supreme Court of the UK recently issued an historic ruling, holding the government liable for air pollution, in a case brought by citizens. The historic importance of the case has several dimensions.

The first dimension is the substance. By the government's own numbers some 29,000 people in the UK die of air pollution a year. It's time to clean up.

The UK Supreme Court is a new institution, set up in 2009. Before then, the highest court in the land was also the upper house of the legislature. The House of Lords, through a panel of law lords, sat to hear cases and render ultimate decisions. By separating out a Supreme Court, the UK is modernizing its system. This is the first environmental case brought by an NGO in this new court, another first.

The case is called R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs. What is particularly encouraging about it is that the judges of the new Supreme Court ruled against the government. This is something the UK courts have been reluctant to do. A reason for the reluctance is that the courts in the UK are an old institution. Their relationship with the legislature bears the marks of an early experiment in governance. Because they were not separate from the legislature, they were reluctant to rule against it. In a sense that would be ruling against themselves. Or in their legal fiction, one must hesitate to rule against the government because it is the monarch's government and the King or Queen can do no wrong. Appropriate perhaps for the 12th century but not the 21st.

So it is encouraging that the new Supreme Court, with greater distance from government, ruled against it. Their ruling was of course made somewhat easier in that the government admitted it was violating the law and that citizens were dying. And the government also admitted that, although it was meant to have complied by 2010, it won't clean up London till 2025 at the earliest.

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Such honest admissions did not move the lower courts, however. Both the court of first instance (called the High Court) and the Court of Appeal declined to give a judgment against the government. One may suspect that the lower court judges were not immune to fears of giving what they thought could be a politically unpopular judgment. They did not say that of course. Instead they decided they could not enforce the law because it originated in Brussels. In doing so they demonstrated an unwillingness to be cognizant of what is now at the foundation of the English legal system. I pointed this out in an earlier blog on the judgement of the High Court judge.

In the Supreme Court, the case was argued for a full day. What was also encouraging was the quality of attention the judges brought to the case. They were learned in the details of the case when they sat down. Then they spent the day asking searching questions to understand the positions of both sides. And they put particular care into the questions regarding what remedy they could give if they held the government liable. In a country where this has rarely happened in environmental cases, to inquire deeply into the practicalities of the remedy showed the best kind of judging. In watching the court work, one could only admire the way in which the judges clearly were seeking to make sense of the law, do justice, and craft a remedy that would work in the real world. It is inspiring to see an institution work so well.

The court held the government liable and kept the case open "for immediate enforcement." Because this is the first time citizens anywhere in the EU have held a country liable under this Europe wide law, the UK court also asked a series of questions to the European Court to get advice on what remedy to craft. This makes sense, as the UK judgment will have profound ripple effects across the EU.

Because of the unwise love affair Europeans have with diesel engines, the UK is not the only country in the EU with air pollution problems of serious proportions. Most capital cities in Europe, and many others, need cleaning up. Governments are reluctant to do it. There is now the possibility for citizens to use their courts to enforce their right to clean air.

The court case is not the end of the fight for air that does not kill us. The UK and other countries are already lobbying in Brussels to loosen the air quality requirements. They hope that when they are ordered to comply with the law, it will be so toothless that they will have nothing to do to comply. So the fight will now also be a legislative one, to protect us all from the effects of modern air pollution, which includes heart attacks and strokes for adults, and stunted lung development for children.

The good news is that citizens now have new tools to fight for their rights. And when they fight they can win. Now that is worth celebrating.